Constitutional Law Prof Blog

Ashcroft Gets Qualified Immunity in Fourth Amendment Arrest and Detention Case

The Supreme Court ruled today in Ashcroft v. Al-Kidd that former AG John Ashcroft enjoyed qualified immunity from a civil rights suit against him for an arrest and detention under the federal material witness statute.  The ruling means that Abdullah Al-Kidd's Fourth Amendment case against Ashcroft is dismissed--and that such arrests and detentions pursuant to a valid material witness warrant do not violate the Fourth Amendment.  But the ruling also puts the validity of material witness warrants in cases like this on shaky ground.

Al-Kidd sued Ashcroft for his arrest and detention pursuant to the material witness statute, 18 U.S.C. Sec. 3144.  (The statute authorizes judges to "order the arrest of [a] person" whose testimony "is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena."  But material witnesses must be released if their testimony "can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.")  Al-Kidd argued that Ashcroft never intended to use him (and never in fact used him) as a material witness; instead, he was detained for 16 days at three different facilities, kept in high-security cells lit 24 hours a day, strip-searched and body-cavity searched more than once, and handcuffed and shackled about his wrists, legs, and waist. 

The district court and Ninth Circuit both ruled for Al-Kidd, denying Ashcroft qualified immunity.

The Court today reversed.  All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention pursuant to the material witness statute.  (Justice Kagan recused herself from the case.)  Under Harlow v. Fitzgerald, an official gets qualified immunity unless (1) the official violated a statutory or constitutional right (the constitutional question) and (2) the right was "clearly established" at the time of the conduct.  Thus the Court's ruling on the "clearly established" prong alone means that Ashcroft gets qualified immunity.

But the Justices divided sharply on the constitutional question.  Justice Scalia (again writing for five) wrote that Al-Kidd's arrest and detention did not violate the Fourth Amendment.  He wrote that the Court generally does not probe intent in determining the validity of warrants.  Here, Al-Kidd's objectively reasonable arrest and detention pursuant to a validly obtained warrant cannot be challenged as unconstitutional simply because the arresting authority had an improper motive (i.e., not to use Al-Kidd as a material witness, but rather simply to detain him).

Four Justices expressed varying degrees of reservation on the broader question of the use of material witness warrants for general detention.  Justice Kennedy, who signed on to Scalia's opinion in full, wrote separately (joined by Justice Ginsburg, Breyer, and Sotomayor) to say that the Court left open the question whether the government's use of the material witness statute was lawful.  Justice Kennedy wrote that material witness warrants might not even be "warrants" for Fourth Amendment purposes, and therefore material witness arrests might be subject to the Fourth Amendment reasonableness standard.  He emphasized that the parties did not argue, and the Court did not address, this question.  (Justice Kennedy also expressed his views on the "clearly established" standard as applied to a national official like Ashcroft.  No other Justice joined this part of his opinion.)

Justice Ginsburg (writing for herself and Justices Breyer and Sotomayor) challenged the validity of the warrant, principally because it was based on false and misleading allegations.  Justice Sotomayor (writing for herself and Justices Ginsburg and Breyer) challenged the "subjective intent" rule here, in a case involving prolonged detention of an individual without probable cause to believe had he committed a crime.

Between the opinions, all eight participating Justices agree that Ashcroft did not violate a "clearly established" right.  Five Justices agree that Ashcroft did not violate the Fourth Amendment.  But one of those, Justice Kennedy, and three others suggested that the validity of a material witness warrant used merely for detention is an open question, at best.

Note that Justice Scalia wrote, and Justices Kennedy and Thomas joined, the Court's opinion on the constitutional question, when all three last week criticized the practice among lower courts (and authorized by the Supreme Court) of ruling on the constitutional question.  The difference: Here it's the Supreme Court, not a lower court, ruling on the constitutional question.

SDS

Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension Constitutional

Article I, Section 7 of the Constitution provides that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it. . . .

 What does "sign" mean?  Or, more precisely, does "sign" include signature by an autopen?

That is the question raised by President Obama's "signing" the Patriot Act extension, S. 990, the “PATRIOT Sunsets Extension Act of 2011, by autopen.  The Presidential autopen signature of legislation is an apparent first.  According to the NYT, with President Obama in Europe and the Patriot Act provisions "set to expire at midnight Thursday, the White House concluded that a mechanical signature would have to do." 

Often the President signs a bill into law in a public ceremony (at right, Obama signing the Lily Lebetter Fair Pay Act).  The usual practice when the President is not available, again according to the NYT, is that "White House staff members fly, unsigned legislation in hand, to wherever the president happens to be,"  but the Obama Administration decided to resort to the autopen, "a machine that reproduces signatures and is ubiquitous in government and business for routine transactions — letters, photos, promotional materials — into the ultimate stand-in."  Recall that autopen signatures are also at issue in foreclosure actions across the US.

Representative Tom Graves (R-Ga.) has sent a public letter to President Obama questioning both the presentment criteria and the signature requirement. 

The autopen issue was the subject of an extensive Memoradum Opinion by the Office of Legal Counsel in 2005.  The Memorandum made clear that the issue was not whether the President could delegate the decision, but that once having made the decision, he could "direct a subordinate" to affix the signature.   The Memorandum's "roadmap" paragraph outlines the analysis and conclusion:

Our analysis proceeds as follows: In Part I, we examine the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7. In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.

Supporting its conclusion that Presidential autopen signatures are constitutional signatures under an originalist interpretation, the Memorandum states

At the time the Constitution was drafted and ratified, and continuing thereafter, courts in England and the United States applied the rule that “when a document is required by the common law or by statute to be ‘signed’ by a person, a signature of his name in his own proper or personal handwriting is not required.” Finnegan v. Lucy, 157 Mass. 439, 440 (1892) (noting that this rule “was and still is very generally held”; collecting early English and American authorities) . . . .  Although the precise origins of the principle of signatures are not clear, they appear to trace back at least as far as Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir Wm. Jones Rep. 268 (J. Seate 1632) . . . .

The Memorandum then discusses other pre-Revolutionary War English cases, the original Statute of Frauds (1677), and the applicability of such private law principles to public law, to ultimately conclude, "Thus, it was well settled at common law that one could sign a legally binding document without personally affixing his signature to it. Rather, under the principle of signatures, one could sign a document by authorizing or directing another to place one’s signature on it."

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

RR
[image: Obama signing the Lily Lebetter Fair Pay Act, via]

Civil Rights Appeals: The Court's Opinion in Camreta v. Greene

The Supreme Court ruled on Thursday in Camreta v. Greene that a prevailing official in a federal civil rights action can appeal the constitutional ruling of the lower court, but that the appeal was moot in this case.

The case involved state child protective service officers' interviews of a 9-year-old girl, S.G., about allegations that her father had sexually abused her.  S.G.'s mother sued under 42 U.S.C. Sec. 1983, claiming that the warrantless and permission-less interviews violated the Fourth Amendment's proscription on unreasonable searches and seizures.

The Ninth Circuit followed the two-step approach in Saucier v. Katz (2001) and Pearson v. Callahan (2009).  Under Saucier, a court asks two questions: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right (the constitutional question), and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct (the qualified immunity question).  Qualified immunity applies and protects an official unless the official's conduct violated such a right. 

Pearson held that the sequence of the two-step process is flexible--that lower courts could, e.g., ask the second question first.  If so, under Pearson, a lower court could also rule on the constitutional question, thus providing guidance to officials in their behavior and actions and advancing (not dodging) constitutional law in the area.  Strictly speaking, the ruling on the constitutional question would be dicta (and under the avoidance principle, really shouldn't be at all--thus the "Pearson permission" that lower courts possess to rule on the constitutional question).  But it would nevertheless be binding on officials, because it would reflect the lower court's judgment on the constitutional question--telling officials what is constitutional and what is not, and thus guiding their behavior.

This is exactly what the Ninth Circuit did.  That court ruled that the officials enjoyed qualified immunity (because their interview did not violate clearly established Fourth Amendment rights).  But it also ruled that the interviews violated the Fourth Amendment.  Thus the officials won on immunity but lost (sort of) on the constitutional question.  The officers appealed; S.G.'s mother did not.

The Supreme Court, by Justice Kagan (joined by Chief Justice Roberts and Justices Scalia, Ginsburg, and Alito) ruled that the officers could appeal, even though they won on qualified immunity.  The appeal satisfied the federal statute conferring on the Court unqualified power to grant cert. on the petition "of any party."  28 U.S.C. Sec. 1254(1).  And it satisfied the case-or-controversy requirement of Article III.

Moreover, the Court ruled that the constitutional question had now become moot: S.G. moved out of state and approached age 18, thus making a repeat of the interview unlikely in the extreme.  And "[b]ecause mootness has frustrated [the officer's] ability to challenge the Court of Appeal's ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school," op. at 18, the Court vacated the Ninth Circuit's constitutional ruling.

Justice Scalia concurred but wrote that he'd be willing to reconsider in an appropriate case whether "to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity."

Justice Sotomayor, joined by Justice Breyer, concurred, but would have avoided the question whether the officers could appeal.  Instead, they would simply have vacated the case in light of its mootness.

Justice Kennedy, joined by Justice Thomas, dissented.  Justice Kennedy argued that the Court's ruling wrongly treated dicta (the Ninth Circuit's constitutional ruling) as precedent, and he argued that an officer who won on qualified immunity could not appeal. 

Four Justices thus joined an opinion to maintain the Pearson permission of lower courts to rule on the constitutional question, even if they ruled that an officer enjoyed qualified immunity.  One of those, Justice Scalia, suggested that he would reconsider it in an appropriate case.  Two others, Justices Sotomayor and Breyer, were silent on the question, but gave no suggestion whatsoever that they would reassess Pearson.  Two others, Justices Kennedy and Thomas, objected that the Court wrongly treated the Pearson constitutional ruling as binding precedent in this case and suggested more generally that Pearson constitutional rulings raised difficulties, because they "could come to resemble declaratory judgments or injunctions" (and not just the obiter dicta they are).

The case likely leaves Pearson permission on solid ground, even if as many as three Justices may be willing to reconsider it, and even if it suggested that in some narrow class of cases (like this one) the constitutional question could become moot, thus undermining it.

SDS

Arizona Legal Workers Act upheld by Court: Chamber of Commerce v. Whiting Opinion Analysis

In a complex opinion, the United States Supreme Court affirmed the Ninth Circuit and upheld the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."  The case was f/k/a Chamber of Commerce of the United States v. Candelaria. 

While the Ninth Circuit's opinion, as we previously noted, read like an excellent discussion of the doctrine, the Court's opinion is less clear and certainly more fractured:

ROBERTS, C. J., delivered the opinion of the Court, except as to PartsII–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and concurred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

Importantly, Justice Kennedy seemed to have resolved his reservations expressed during oral argument about the position of Arizona in light of Justice Breyer's questions: Kennedy joined the opinion of CJ Roberts and not Justice Breyer's dissent.

The Court began with its conclusion "that the State’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law" and therefore held that the Arizona law is not preempted. 

After extensively explaining the federal immigration regulatory regime and the Arizona statute, the Court turns to the vital definition of "license."   The case pivots on the meaning of license because the Immigration Reform and Control Act of 1986 (IRCA), expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."

"Licensing" turns out to be an ambiguous term, although during oral argument Kennedy admited he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments.  Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude, and indeed Roberts opinion for the Court quotes  Webster’s Third New International Dictionary.  The Court then notes:

The Chamber and the United States as amicus argue that the Arizona law is not a “licensing” law because itoperates only to suspend and revoke licenses rather than to grant them. Again, this construction of the term runscontrary to the definition that Congress itself has codified.See 5 U. S. C. §551(9) (“‘licensing’ includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license” (emphasis added)). It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grantslicenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.

 On the issue of mandating employers to use the E-verify system to determine authorization to work, the Court rejected the Chamber of Commerce's argument that the Arizona requirement was impliedly preempted, noting that the federal government has encouraged participation in the system and that it is reliable.

Justice Breyer's lengthy dissenting opinion, joined by Justice Ginsburg, and Justice Sotomayor's separate dissenting opinion fundamentally disagree that the Arizona statute is a licensing law.  Breyer would "read the words “licensing and similar laws” as covering state licensing systems applicable primarily to the licensing of firms in the business of recruit-ing or referring workers for employment, such as the state agricultural labor contractor licensing schemes in exis-tence when the federal Act was created."  Justice Sotomayor emphasizes the statutory scheme and ultimately concludes:

the [federal] statutory scheme as a whole defeats Arizona’s and the majority’s reading of the saving clause.Congress would not sensibly have permitted States todetermine for themselves whether a person has employedan unauthorized alien, while at the same time creating aspecialized federal procedure for making such a determination, withholding from the States the information necessary to make such a determination, and precluding useof the I–9 forms in nonfederal proceedings.

Although Chamber of Commerce v. Whiting does not involve Arizona's  SB1070, the litigation is seen as having implications for the more notorious law.  However, it is distinct from SB 1070 in several important respects, including the fact that both the district judge and the Ninth Circuit found the Arizona statute at issue in Whiting to be constitutional.

 

RR
[image: Work by Ford Maddox Brown, circa 1852  via]

 

Federalist Society's Scholarly Bibliography

Need a list of "the key work by conservative and libertarian scholars" on constitutional law?  Then you might be interested in the updated bibliography from the Federalist Society.  It's intended for "law students and aspiring legal scholars," but should be useful for law professors.  The bibliography has sections not only on constitutional law, but on other areas of law such as property, family law, federal courts, and securities law.

RR

 

The Promise of New Textualism

There's an emerging consensus in constitutional interpretation, and it overshadows the lingering disputes between conservatives and progressives over the merits and demerits of originalism and living constitutionalism.  That consensus is over the primacy of constitutional text.

So argues James E. Ryan (UVa) in a new discussion paper released last week by the Constitutional Accountability Center, Laying Claim to the Constitution: The Promise of New Textualism.  Ryan carefully traces the history of originalism(s) and progressive constitutionalism and claims that the formerly diametrically opposed methods of constitutional interpretation now share a key feature: a principal focus on text and its meaning. 

According to Ryan, this consensus doesn't represent the triumph of originalism, or textualism, or strict constructionism--the isms that conventionally veil a conservative interpretation.  Instead, both conservatives and progressives gave a little in arriving at this consensus.  Ryan explains:

The "new" part of new textualism signifies how it differs from earlier approaches to the text, both by those on the Left and those on the Right.  New textualists reject the facile assumption of liberal academics that the text is hopelessly indeterminate and therefore essentially useless when it comes to deciding modern constitutional issues.  Instead, there is a recognition that some readings of the text are more plausible than others, and that the most plausible reading of the text can at least narrow the range of possible outcomes, even if it cannot settle every single question.

At the same time, new textualists reject the equally facile assertion of some conservatives that the text, properly interpreted, yields precise answers to just about every question imaginable. . . .  In rejecting this simplistic view, new textualists remain faithful to the general language used in some constitutional provisions and insist that the language and the principles it embodies must prevail.  Expectations among the founding generations of how that language might apply to a given situation can help elucidate the meaning of the text, but they cannot be substitutes for the text itself.

In short, new textualists recognize that the text is both more determinate than some have claimed and less determinate than others have claimed.  Their commitment is to take the text on its own terms.  And their aim is to elucidate the meaning of the text, which often requires understanding its purpose.

Laying Claim, at 22.

And moreover, new textualism favors progressives as much (if not more) than conservatives in reading and applying the Constitution:

[The new textualism] has opened a rich vein of scholarship that sheds light on the best meaning of important and contested constitutional provisions, which singly and in combination challenges scholarship suggesting that the Constitution is a conservative document.  Spurred by the path-breaking work of Akhil Amar, progressive academics are engaging conservatives on their own turf and showing how numerous constitutional provisions are more in line with contemporary progressive values than conservative ones.

Laying Claim, at 3. 

New textualism is simply a focus on the meaning of the text.  It does not end the debates on constitutional interpretation and application--in some ways it only starts new ones--and new textualists allow for other modes of constitutional construction.

To be clear, those who embrace new textualism do not insist that looking to the text and history is the only legitimate way of deciding cases.  Most new textualists make room for, among other things, stare decisis.  In addition, most new textualists admit that text and history do not provide precise answers to every constitutional question.  Thus, as I have said, they recognize that constitutional adjudication often requires two steps--determining the meaning of the constitutional provision at issue, as precisely as possible, and then applying that meaning to the issue at hand.  That second step may entail following precedent, or it may entail reliance on broader theories of adjudication like judicial restraint or political process theory.

All that new textualists are suggesting, essentially, is that courts and scholars take the first step more seriously.  Scholars from across the political spectrum agree that text and history have an important role to play in constitutional interpretation and adjudication.  New textualists are essentially arguing that scholars and courts should give more than lip service to this universally supported principle.  This does not entail caving to the Right, as some progressive critics suggest.  It instead entails taking these sources seriously and mining them for the meaning they contain, rather than sailing right past them in the often mistaken belief that they offer little of value.

Laying Claim, at 27-28.

Here, Ryan's paper becomes a call to arms.  He argues for more scholarly attention to text and history, especially among progressive academics.  And he surveys the excellent literature on text and history already out there, on everything from "Article I to the Nineteenth Amendment."  (The survey, starting on page 28, is a good starting point for anyone considering answering Ryan's call.)  He also calls for scholarly attention to the role of precedent and other "second question" sources.

Ryan's chronicling of the evolution of originalism and its detractors, and his typology of the predominant current theories of constitutional interpretion, all in the first part of the paper, are also worth a note.  Ryan offers a clear, balanced history and excellent summary of the most current approaches.

Ryan's paper was released last week by the CAC as a "discussion draft" and will appear in the November 2011 volume of the Virginia Law Review.  It's also available on SSRN.

SDS

Access to Justice: U New Hampshire Law School to Host ABA Task Force on Preservation of Justice

The Dean and Faculty of the University of New Hampshire School of Law will welcome the ABA Task Force on Preservation of the Justice System to hold a hearing on Thursday 26 May.

Three panels led by Co-Chairs David Boies and Theodore B. Olson will hear testimony from various state Chief Justices, state Bar leaders and Professor Laurence Tribe (former Department of Justice Senior Counselor for Access to Justice).

The proceedings will be streamed live at http://law.unh.edu/live starting at 11 a.m. EST through 3 p.m. EST.

RR

Scribes Publishes Garner's Interviews with Justices

In case you missed it, the Scribes Journal of Legal Writing recently published Bryan Garner's interviews with Chief Justice Roberts and Justices Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito on legal writing and persuasion at the Supreme Court. 

Garner (Black's Law Dictionary; Making Your Case, with Justice Scalia; and general legal writing guru) posted the videos of the interviews some time ago on his site, Law Prose.  But the Scribes publication is the first time they're available in print.  Check out the pdf, with links to each Justice's interview, here.

SDS

Liu's Filibuster and Constitutional Fidelity

The successful filibuster last week of President Obama's nomination of Goodwin Liu (Boalt Hall) to the Ninth Circuit was hardly based on a principled dispute about constitutional interpretation.  Stated reasons for opposition (and thus for the filibuster) ranged from Liu's alleged position on affirmative action to his opposition to President Bush's nominations of then-Judges Roberts and Alito to the Supreme Court.  (The reasons for opposition are well known; here's the floor debate in the Congressional Record, more or less hitting the highlights.)  Most of the reasons were based on selective reading and misinterpretations of Liu's work (although Liu did oppose the nominations of Chief Justice Roberts and Justice Alito).  Con Law Prof Geof Stone (U. Chicago) summed it up in yesterday's Chicago Tribune, writing that the filibuster was merely "partisanship run amok."

Constitutional interpretation played a bit part in opposition to the Liu nomination--but only a bit part.  And for good reason: Liu's interpretive method, constitutional fidelity, is hardly controversial.  It's reflected in different ways in opinions authored by Justices ranging from Ginsburg to Scalia.  It looks an awful lot like Justice Breyer's pragmatic approach, as described most recently in Making our Democracy Work.  And it has strong theoretical roots, going back to work like Philip Bobbitt's classic, Constitutional Fate.

Here's what Liu wrote (or co-wrote, with two other prominent con law scholars) in Keeping Faith with the Constitution:

To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time.  Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.

Keeping Faith, at 2.

Compare that with Justice Breyer's pragmatism:

Modern American judges working in this tradition, like most judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text.  But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences.  In doing so, judges must avoid interpretations that are either too rigid or too freewheeling.  They must remain truthful to the text and "reconstruct" past solutions "imaginatively" as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem.  The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.

Making our Democracy Work, at 80-81.  These are just short excerpts, to be sure, and Justice Breyer may have his detractors, but Liu's similarities throughout Keeping the Faith with this sitting Supreme Court Justice suggest that his approach is hardly outside the mainstream. 

SDS

SG's Confession

Acting Solicitor General Neal Katyal last week--in the middle of Asian-Pacific American History Month--posted a "Confession of Error" on the DOJ blog relating to mistakes the SG made during the Japanese-American internment cases at the Supreme Court. 

 

In particular, Katyal confessed, the SG failed to alert the Court to the Ringle Report, issued by the Office of Navy Intelligence and finding that the "alien menace is no longer paramount," that "the large majority [of Japanese-born alien residents] are at least passively loyal to the United States," that only about 300 Japanese (both alien and U.S. citizens) might act as saboteurs or agents of the Japanese government, and that the most dangerous of those were already in custody.  From the Confession:

But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court "might approximate the suppression of evidence."  Instead, he argued that it was impossible to segregate loyal Japanese American from disloyal ones.  Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC.  And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by "racial solidarity."

For more on Japanese-American internment during WWII, including a trove of original sources, check out the National Archives Library Information Center on Japanese Relocation and Internment.

SDS

Congressional Response to WPR Restriction on Libyan Operations

Since President Obama blew by the 60-day restriction in the War Powers Resolution, 50 U.S.C. Sec. 1544(b), on unauthorized troop commitments in Libya on Friday, a spate of legislation has appeared authorizing, de-authorizing, or otherwise expressing the sense of Congress on Libyan operations.

The WPR states:

Within sixty calendar days after a report is submitted or is required to be submitted [on a Presidential commitment of U.S. troops], whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. . . .

Friday was the 60-day deadline.

In reaction, Rep. Dennis Kucinich yesterday introduced House Concurrent Resolution 51, directing the President, pursuant to Section 5(c) of the WPR, to remove U.S. forces from Libya.  Section 5(c), 50 U.S.C. Sec. 1544(c), reads:

Notwithstanding subsection (b) of this section [quoted above], at any time that United States Armed Forces are engaging in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Senator Rand Paul took a different tack in his Senate Joint Resolution 13, "declaring that a state of war exists between the Government of Libya and the Government and people of the United States, and making provisions to prosecute the same."  And Senator John McCain introduced Senate Resolution 194, "expressing the sense of the Senate on United States military operations in Libya."

Earlier bills include Senator John Cornyn's Senate Resolution 148, calling on the President to report to Congress on matters related to the Libyan operation and calling on the President to seek congressional authorization for the use of force in Libya.  Senate Resolution 146 expresses the sense of the Senate that it's not in the vital interest of the U.S. to intervene in Libya and urging others to step up.  Other resolutions call on the administration to report to Congress on the Libyan operation and to comply with the WPR.

We posted on the OLC memo concluding that the President had authority to commit U.S. troops to Libya here.  Here's what the OLC had to say about the relevant sections of the WPR:

Indeed, Congress itself has implicitly recognized this presidential authority.  The [WPR], a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introductions of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."  The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization."  As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities.  That structure--requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress.

Memo at 8 (citations omitted).

The memo thus recognizes the limits in the WPR as valid authority for the President.  If so, the legislation introduced yesterday seems to say, the President must also recognize these limits in the WPR as restrictions.

SDS

Court Upholds State Secrets in Narrow Ruling

The Supreme Court today unanimously ruled in General Dynamics Corp. v. United States that the state secrets privilege protected certain information from disclosure in a suit against the government by a contractor alleging that the government possessed "superior knowledge" as to the subject of the contract.  The Court ruled that the when a superior knowledge defense would inevitably reveal state secrets, neither party can obtain judicial relief, and the proper remedy is to leave the parties where they were on the day they filed suit.  We previously posted on the case here.

This long-running dispute involved the ill-fated A-12, a planned stealth aircraft that General Dynamics contracted to build for the Navy.  After development delays, the Navy cancelled the program, terminated the contract for default, and demanded $1.35 billion dollars in progress payments for work the government never accepted.  General Dynamics sued in the Court of Federal Claims to challenge the default decision, arguing that the government possessed, but failed to share, "superior knowledge" relating to the aircraft's development.  (The superior knowledge was the stealth technology that the government used for earlier aircraft but that General Dynamics did not have.)  The government claimed that litigation of General Dynamics's superior knowledge claim would inevitably lead to the disclosure of state secrets.

The Court agreed and ruled that "neither party can obtain judicial relief."  Op. at 8.  Thus General Dynamics cannot use protected evidence to prove lack of default; and the government cannot use protected evidence to prove default.  Instead, the proper remedy is to leave the parties where they were when General Dynamics filed suit.  The Court remanded to the Federal Circuit to determine whether and how the case can move forward without the protected evidence.

The unanimous ruling, written by Justice Scalia, clarifies the state secrets privilege in at least this context, secret government contracts, and may shed light on its application beyond this context.

The ruling is narrow by its own terms.  Justice Scalia seems to go to lengths to limit the ruling to government contract disputes involving secret evidence, even to that sub-category involving superior knowledge claims.  He's clear that this case falls within that narrow line of authority applying the state secrets privilege to secret government contracts--Totten v. United States and Tenet v. Doe--and not a broader line applying the privilege more generally (as in United States v. Reynolds) or to a principle that the privilege has no application when the information is necessary to a criminal defense.  Underscoring the narrowness of the ruling, he concludes with this:

In Reynolds, we warned that the state-secrets evidentiary privilege "is not to be lightly invoked."  345 U.S., at 7.  Courts should be even more hesitant to declare a Government contract unenforceable because of state secrets.  It is the option of last resort, available in a very narrow set of circumstances.  Our decision today clarifies the consequences of its use only where it precludes a valid defense in Government-contracting disputes, and only where both sides have enough evidence to survive summary judgment but too many of the relevant facts remain obscured by the state-secrets privilege to enable a reliable judgment.

Op. at 13-14.

But even with this limiting language, the ruling may shed some light on the Court's view of the privilege outside of the narrow facts of this case.  For example, the Court sharply distinguishes between the Totten version of the privilege and the Reynolds version of the privilege--a distinction that has become increasingly murky in the lower courts' rulings and in the government's positions in cases involving, e.g., extraordinary rendition and torture, and that has resulted in an expanded state secrets privilege.  Today's ruling maintains and underscores the traditional distinction between the two versions of the privilege, at least in secret government contracts.  This could lend fodder to those who argue for the traditional distinction between the two privileges (and thus a relatively narrower privilege, at least in relation to the government's position in recent cases) outside secret government contracts.

Another example: The Court emphasizes that the privilege, whether the Totten version or the Reynolds version, is merely an evidentiary privilege--not a constitutional separation-of-powers principle--and that a case can (at least potentially) move forward even absent privileged evidence.  This, too, could lend fodder to those who argue for a more limited privilege--at least more limited than the expansive, separation-of-powers-mandated version that has appeared in recent litigation. 

On the other hand, the opinion also recognizes the need for a state secrets privilege.  Justice Scalia at one point recounts the secret information that mistakenly came out in this case, prompting the Navy to assert the privilege in the first place. 

Given the explicitly narrow ruling, it's not clear how much, if any, of this will guide the Court outside this specific context.

The narrowness of today's ruling allows the Court to dodge the harder questions about the state secrets privilege--questions that it also dodged when it recently declined to hear an appeal of the sharply divided Ninth Circuit's en banc decision affirming the dismissal of Mohamed's claim against Jeppesen for its role in his extraordinary rendition and torture under the state secrets privilege.  But the Court at the same time gave us a glimpse of its answers, at least in the context of government contracting:  The Totten privilege and the Reynolds privilege are different; they are both evidentiary privileges (and not constitutional separation-of-powers privileges); and a case might move forward even after a successful invocation of the privilege.  Whether these answers also apply in cases outside government contracting: We'll have to wait.

SDS

Court Affirms Reduction in Prison Overcrowding in California: Brown v. Plata Opinion

In a 5-4 decision today in Brown v. Plata, the United States Supreme Court affirmed the order of a three-judge federal court requiring California prisons to remedy prison overcrowding to comply with the Eigth Amendment.

As was apparent from the contentious oral argument in the case (then Schwarzenegger v. Plata), the ultimate division amongst the Justices was whether to privilege the overcrowded conditions (and the resultant mental and other health problems of prisoners) or to privilege the possible public safety ramifications caused by the release of prisoners to ease the overcrowing.  However, many issues regarding the authority of the three-judge court and the findings of fact also occupied the oral argument.

Writing for the Court, Justice Kennedy's opinion is short on rhetoric and long on details and close reasoning.  He does, however, devote substantial space to the conditions of confinement, including in the three photos in the Court's Appendix (as in photo left) and as in this passage:

After one prisoner was assaulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may also impede efforts to improve delivery of care. Two prisoners committed suicide by hanging afterbeing placed in cells that had been identified as requiringa simple fix to remove attachment points that could sup-port a noose. The repair was not made because doing sowould involve removing prisoners from the cells, and there was no place to put them. Id. at 769–777. More generally, Jeanne Woodford, the former acting secretary of California’s prisons, testified that there “‘are simply too many issues that arise from such a large number of pris-oners,’” and that, as a result, “‘management spends virtu-ally all of its time fighting fires instead of engaging inthoughtful decision-making and planning’” of the sort needed to fashion an effective remedy for these constitu-tional violations. Juris. App. 82a.

Opinion at 23.  Yet, the Court acknowledged that as "this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simpleor straightforward solutions. In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures." (Opinion at 28).  The Court upheld the order of the three-judge court to reduce prison the prison population to 137.5% of capacity finding it not to be overbroad or otherwise unauthorized.  

Buried within a paragraph regarding the State's ability to move for modification from the three-judge court is the Court's observation that at this time, "the State has not proposed any realistic alternative to the order." Opinion at 36.  In other words, there is a "constitutional wrong" and it must be remedied.

The Court also reviewed the remedy under a provision of the Prison Litigation Reform Act, PLRA, 18 U. S. C. §3626(a), that requires a remedy to be “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety.   As the Court concluded:

The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requiresa remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay.

Dissenting, Justice Scalia joined by Justice Thomas, labels the remedy by the three judge court "perhaps perhaps the most radical injunction issued by a court in our Nation’s history," based upon proceedings that were a "judicial travesty" and a result which "takes federal courts wildly beyond their institutional capacity."   In less colorful language, Justice Alito's dissent, joined by Chief Justice Roberts, criticizes the decree of the three judge court as "a perfect example of what the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, was enacted to prevent," and adds that

The Constitution does not give federal judges the au-thority to run state penal systems. Decisions regardingstate prisons have profound public safety and financial implications, and the States are generally free to makethese decisions as they choose.

Alito also predicts dire consequences, as he did during the oral argument, closing his dissenting opinion with his fear that the decision "will lead to a grim roster of victims. I hope that I am wrong.In a few years, we will see."

RR
[image from Appendix of Court's Opinion].

President Expands Order Blocking Property of Syrian Officials

President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists.  The new EO expands the list of persons whose property is and may be blocked.

The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate.  It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria."  (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)

SDS

Banning (Male) Circumcision: San Francisco Ballot Measure

San Francisco's ballot process this November will include a provision that would ban male circumcision.

The actual provision, changed by the city attorney to the title of "male circumcision," was entitled "Prohibition of genital cutting of male minors," and provides, that with an exception, "it is unlawful to circumcise, excise, cut, or mutilate the whole or any part of the foreskin, testicles, or penis of another person who has not attained the age of 18 years."  The ordinance would make it a criminal misdemeanor. 

Interestingly, the exception is limited to circumstances when it is  "necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a person licensed in the place of its performance as a medical practitioner."   And even more interestingly, the exception to the exception specific excludes religious exemptions:  "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."

The analogies to female genital mutilation/ female circumsicion are obvious, including the religious rationales.  Yet male circumcision has attracted less scholarly attention.  Marie Fox and Michael Thomson, British legal scholars, have written about the practice as a matter of children's rghts in two legal essays: Short Changed?: The Law and Ethics of Male Circumcision, 13 Int'l J. Child. Rts. 157 (2005); Cutting It: Surgical Interventions And The Sexing Of Children, 12 Cardozo J.L. & Gender 81 (2005).

Conceptualized as the child's right to be free from harm, the First Amendment religious freedom arguments become less persuasive.  However, in an opinion column, Brad Hirschfield essentially argues that the proposed prohibition is rooted in hostility to religion:

 ... but the fact that those seeking to ban circumcision don’t also pursue banning other medical procedures which parents elect to have performed because they believe it to be the right thing for their kids, indicates that the whole fight about circumcision is really just an expression of the opponents’ hostility to religion in general, or to the notion that parents have a legitimate right to make decisions which shape their kids’ futures because that too is a part of parenting.

The proposal may be unlikely to pass, but if it does, it is sure to face a constitutional challenge based on the Free Exercise Clause of the First Amendment.  The arguments will surely rely on well-known cases involving the parental right to make religious decisions on behalf of their children, although the cases point in different directions.  In  Prince v. Massachusetts (1942), the Court upheld Prince's conviction of state child labor laws for allowing a child in her care to distribute Jehovah's Witness' literature:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

Prince, however, is contrasted with Wisconsin v. Yoder (1972) in which the Court found that the Amish need not comply with complusory education laws given specific Amish beliefs.  The uniqueness of the Amish views on compulsory education after the eighth grade is also a contrast with male circumcision;  although less popular than it once was, it is still widely practiced by a number of religions including Judaism and Islam, as well as for nonreligious reasons. 

Additionally, the challengers will most likely rely upon Church of Lukimi Babalu Aye v. City of Hialeah (1993) to argue that the law is not a neutral law of general applicability, and thus should be subject to the strictest scrutiny as targeting a particular religion as Hialeah, Florida targeted the practice of Santeria.  Yet again, the fact that male circumcision is more widely practiced by a number of religions may be a point of distinction.

RR
[image from Leonardo daVinci via]

CFP: Supreme Court Preview by Charleston Law Review

The Charleston Law Review invites submissions for its annual Supreme Court Preview volume. 

Here's the call:

This year’s Preview will feature a foreword by Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California Irvine School of Law.  The 2009 Supreme Court Preview volume was cited by Justice Clarence Thomas in his concurring opinion in FCC v. Fox Television Stations Inc., 129 S. Ct. 1800 (2009). 

We welcome an article or essay addressing a case before the Court in its October 2011 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court. 

The Supreme Court Preview is published to coincide with the opening of the October 2011 Term.  We therefore ask that work be submitted no later than August 1, 2011.  Submissions will be reviewed on a rolling basis beginning June 1, 2011.  Please direct submissions and any questions about our Supreme Court Preview to Mollie Brunworth, Editor in Chief, via email at mgbrunworth [at] charlestonlaw.edu.

There are some notable criminal procedure cases scheduled for the October term, as well as a standing/retroactivity issue under SORA (Reynolds v. US), the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, regarding Congressional copyright power (Golan v. Holder), and the political question issue regarding whether a birthplace of  "Jerusalem" entitles the person to list "Israel" as place of birth (MBZ v. Clinton).

RR

Who is Buried in the Congressional Cemetery?

What do Belva Ann Lockwood, G. Edgar Hoover, and Leonard Matlovich have in common? 

In "A Walk Through Congressional Cemetery," Josh Swiller examines the final resting places of these Constitutional Law characters and others, including some who have grave markers but were apparently not buried there. 

Swiller's article in The Washingtonian also considers another cemetery inhabitant:

There’s a man named Stephen Pleasonton, buried near the main entrance, who rescued the Constitution and the Declaration of Independence from being captured and burned by the British in the War of 1812. He crammed the documents into coarse bags, commandeered a few rickety carts amid the general panic, and took off for Georgetown with minutes to spare.

Swiller makes the place seem almost as historically important as the much more famous Arlington National Cemetery, but certainly more quirky.  It may be worth a trip during the 2012 AALS Convention.  Meanwhile, it's suitable reading for ConLawProfs looking for a diversion from exams.

RR

Justice Thomas on Civility in the Court

According to Adam Folk in the Augusta Chronicle, Justice Clarence Thomas thinks the United States Supreme Court Justices are much more capable of civil discourse than society as a whole:

As he shifted from outtakes of his youth in rural Georgia to his early days practicing law, Thomas reserved much of his roughly 30-minute speech at the Augusta Bar Association's Law Day Banquet to draw a distinction between commentators and "cynics" who demonize those with opposite opinions with a Supreme Court that has not "disintegrated into the unfathomable conduct that we see in public discourse."

Folk provides a few quotes from Thomas' speech, including this one:

"In that room, when we discuss First Amendment, abortion, Second Amendment, death penalty, pre-emption, commerce clause, the cases of great consequence -- Bush v. Gore -- I still have yet to hear the first unkind word."

Civility is not a new topic for Justice Thomas.  His address at New England School of Law, Speech: Civility and Public Discourse, is available at 31 New Eng. L. Rev. 515 (1997).

RR
[image: Justice Clarence Thomas via]

Federal Bank Act, Regs Preempt State Par Value Statute

A three-judge panel of the Eleventh Circuit ruled last week in Baptista v. JP Morgan Chase Bank, N.A. that Office of the Comptroller of the Currency regulations promulgated under the National Bank Act preempted Florida's "par value" statute.

Florida's statute, Fla. Stat. Sec. 655.85, specifically prohibits a bank from "settl[ing] any check drawn on it otherwise than at par."  Thus when Baptista (who had no account at Chase) was charged a $6.00 fee when she sought to cash a check drawn on a Chase account, she sued, arguing that Chase's check-cashing service fee violated Florida law.

But OCC regulations allow a national bank to "charge its customers non-interest charges and fees, including deposit account service charges."  12 C.F.R. Sec. 7.4002(a).  OCC interpretive letters define "customer" to include "any person who presents a check for payment."

The court ruled that the OCC regs conflict with, and thus preempt, Florida's par value statute, applying the preemption standard from Section 5136(b)(1)(B) of the new Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010:

State consumer financial laws are preempted, only if . . . in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al. . . . the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers . . . .

12 U.S.C. Sec. 25b(b)(1). 

The Eleventh Circuit is apparently only the second federal appeals court to rule on preemption of state par value laws.  The Fifth Circuit was the first, in Wells Fargo Bank of Texas NA v. James, a 2003 case also ruling that OCC regs and the NBA preempt.  (The Fifth Circuit applied the Barnett Bank preemption standard as part of its analysis.  The case obviously predated the preemption provision in the Dodd-Frank Act.)

SDS

Hate Song Update from South Africa

The newest development from South Africa in the controversial "hate song" which roughly translates as "kill the Boer" which we discussed here,  is a an opinion denying the ANC leave to appeal and holding that the song is "unconstitutional."   In fact, the court finds that the phrase "prima facie satisfies the crime of incitement to murder." 

As South African constitutional scholar Pierre deVos explains, the issue is more properly expressed as whether or not the song can be criminalized as violative of the national Equality Act in a manner that is consistent with South Africa's Constitution section 16 regarding free speech.

The newest judgment arises from the April Equality Court case of Julius Malema in the South Gauteng High Court, which "has seen hundreds of Malema supporters camped outside the court singing and dancing, with a remixed version of the controversial song containing the lyrics “dubul' ibhunu”, or “shoot the boer.”"

 

South Africa's Mail and Guardian has a terrific slide show complete with music here.

RR
[image from Mail and Guardian slide show]